Observations of the legal scene from the Cornhusker State, home of Roscoe Pound and Justice Clarence Thomas' in-laws, and beyond.

Tuesday, August 15, 2006

Nebraska Court of Appeals rejects "mode of operation" rule in slip and fall cases when the Plaintiff is unable to prove the defendant's "notice" of the hazardous conditionLenzen v. JG Shopping Ctr. Mgmt. (Not Designated for Permanent Publication) Filed August 15, 2006. No. A-04-1214. Plaintiff lost on summary judgment suit against Lincoln Joint Venture in her sliip and fall injury suit against the mall. Pl alleged she slipped on spilled fluids in the mall near its food court. She could not however prove the Defendant created the condition or had notice of it. Pl counsel argued that Nebraska should adopt a "mode of operation" exception to the slip and fall notice rule and allow her to make a case on the likelihood that falls would occur because of the nature of the business, eg the food court's presence near the mall main area. Nebraska Court of Appeals rejects this theory as contrary to the Nebraska Supreme Court's notice rule, lately defined at Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003), Lenzens argue that the district court erred in failing to adopt the mode-of-operation rule which a minority of other states have adopted. The mode-of-operation rule provides that "the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise" based on a business' choice of a particular mode of operation. Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 400, 733 P.2d 283, 285 (1987). The Lenzens contend that the Appellees were charged with knowledge of the hazardous condition under the mode-of-operation rule because the Appellees permitted drinks purchased in the food court to be carried outside the food court area and into the common areas of the Mall and because the Appellees knew that people had slipped and fallen within the Mall.
We have already generally described the current state of the law concerning premises liability cases in Nebraska. Among other things, the plaintiff must establish that the defendant created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. The mode-of-operation rule renders immaterial actual or constructive notice of a dangerous condition prior to an accident--something clearly required by the precedent in Nebraska. Eliminating the notice element would make certain store owners insurers of the safety of their patrons and would essentially make those store owners strictly liable for slip-and-fall injuries occurring on their premises